Select Committee on European Scrutiny Minutes of Evidence

Examination of Witness (Questions 460 - 469)



  460. Have you any evidence of Article 308 being used in its broader sense, in order to circumvent the likes of the role of the scrutiny committee or national parliament?
  (Mr Howe) No, not to circumvent the role of the scrutiny committee, but my concern about 308 is that it is capable of being used effectively to put anything through that you could put through by act of parliament. It is not limited.

  461. Would the question of unanimity not overcome that fear and not stop that happening?
  (Mr Howe) Indeed, because it is a unanimous power, every government has to vote in favour of it in the Council before it can be invoked. Every minister in the Council has to vote for it. What I am arguing for here is about the relationship between parliament and the minister. I would argue that before he exercises such a sweeping power, the minister ought to have positive parliamentary assent.

  462. I think that if there was positive evidence of 308 being used in order to circumvent parliament, then I could understand that proposition, but if you could not give examples where it had been used, then unanimity would safeguard the position as it stands at the present time. Would you not agree with that?
  (Mr Howe) If the minister is using the power in accordance with the wishes of parliament, then no problem arises. There would probably be a debate on it anyway. If there is a legal requirement that a resolution be passed approving his action, all well and good. What I am arguing for is to strengthen the position of parliament vis-a"-vis the executive. Because that particular power is a unanimity power, this is not so much about the relationship between this country and the European Union, it is more an issue to do with the relationship between parliament and government.

Mr Connarty

  463. I note one serious omission in the paper: you have not made any comment about the Commission. Therefore, I have a two-part question. What do you see the role of the Commission being? Do you see it continuing as it is at the moment?
  (Mr Howe) I am one of those people who have a slight sympathy for the Commission in the sense of the brickbats that are thrown at it. It was set up very much on the basis of an oligarchical body that would know best and has this extensive power over the promotion of legislation, formulation of promotion of European legislation. In fairness to the Commission, it does try hard in most cases to get things right when it legislates. It does consult on proposed measures on a scale far greater than our own government machine tends to consult on domestic bills, for example. I do not see significant changes in the role of the Commission as being a route for improving democratic accountability. I know that it is a body that people like to throw sticks at all the time.

  464. There are some who might say that the consultation process is because they have an idea and they keep going after it until they get their way, regardless of what people want. I am thinking of the Waste Packaging Directive. Elected democratic governments have a mandate, and therefore the period of consultation does not have to be so long because they have already obtained that mandate at the ballot box; but there is certainly one view that those who are consulted are not happy about the outcome, not so much because of the compromise but because of the determination on the part of the Commission to have the legislation they wish. Turning to the second point, you obviously do not see it as being so important, but since there does seem to be an alienation of the citizens from the Commission, do you think that might be improved if the Commission president was elected, particularly if the president was elected by national parliaments rather than just the European parliament—the two models that have been touted for consideration? Are you saying you do not want it to be more accountable because you think it is should be an oligarchy with its own autonomous powers in regard to legislation?
  (Mr Howe) The danger of the proposal to elect the Commission president directly is that the commission continues to be an oligarchy but it gains the false imprimatur of having a democratic mandate. For the reasons I have already argued, I do not believe that election by the European Parliament would, in reality, provide a democratic mandate to the president of the Commission, although it would give him the appearance of one. Election by national parliaments is a more interesting idea; however, it may not do much more than replicate the present system.

Mr David

  465. I am surprised you are not more critical of the Commission. I would have thought you would have argued the case for making the Commission more directly accountable to the Council. One of the things that has happened over the last few years is that the influence of the Council in comparison to the Commission has increased, particularly with regard to the second and third pillar areas. Do you see scope, therefore, for the Council to develop a role in terms of the administration of the European Union to a far greater extent than it is at the moment?
  (Mr Howe) The problem that develops is that of course the Council's role has expanded and the bureaucracy attached to the Council has expanded. One is almost developing along to a stage where the Directorate-General of the Council gets so big that it becomes almost an alternative Commission; and you then ask: what is the Commission for; what is the bureaucracy of the Council for; why have two bodies; what is the distinction between them? I think the Commission is viewed as being particularly important by the smaller states. It may be difficult for us to see that from the perspective of being a large state with considerable weight and influence of its own. The smaller states do view the independent role of the Commission as being some sort of safeguard for their interests against the collective and possibly self-serving actions of the larger states. Despite my castigation of it being a non-accountable oligarchy, I think there is a role in the system for an impartial non-accountable body, provided it does the right things. Those are to act as a check on the legality of the instruments that are presented and promoted under the Treaty, and ensure that the appropriate powers are being used. The downside of its unaccountable nature is the point that Mr Connarty made: they have their own ideas of how to achieve things, and they plug away at them. However, I find it very difficult to see how putting the Council directly in charge of the Commission will improve that situation in concrete terms.

Jim Dobbin

  466. In your response to my questions, you mentioned referenda, particularly in association with Switzerland. There was the referendum that took us into Europe, and there will probably be a referendum in due course over the euro. What role do you see referenda having in the European Union?
  (Mr Howe) The response I was making was in answer to the point that the national parliaments may not be all that much of a check anyway. I was saying that the only way you could go further might, in theory, be by a system of referenda. We did not have a referendum in 1972 on the question of whether or not to enter, but we had a referendum later on as to whether or not to stay in. We are promised in this country a referendum on the question of joining the single currency, but you could argue that the question of whether or not you have a referendum is a constitutional question for each Member State. For example, the Irish had three or four referenda on successive treaties. I could certainly make a coherent argument that we ought to have referenda on constitutional changes in our United Kingdom constitutional system. The point I was answering in relation to your question was the question of ordinary EC legislative matters. In theory, you might think of going down the route of referenda, but we would never have referenda on ordinary non-constitutional matters in our own constitutional position. There, we differ from Switzerland, and I am not personally advocating that.

Mr Marshall

  467. Mr Howe, in your paper you mentioned the old chestnut of gold-plating and said that the industry feel is that the UK tends to gold-plate. What hard evidence, as opposed to anecdotal evidence, do you have to support that point?
  (Mr Howe) I think it is more than anecdote. In fairness, over the last few years the system has become much more aware and alive to the possibility of gold-plating, and there is much less tendency for it to happen than used to be the case in the past. In concrete terms, just thinking in my own area of my specialist expertise, to take an example, the extension of the term copyright directive, extending the life of copyright from 50 years after the death of the author to 70 years for most categories of works, left quite a lot of room to Member States in the transitional provisions, which are quite important because you are talking about all the works of copyright in existence as of the particular date. Those have been implemented under our law in a fiendishly complicated way, which I would argue in some respects goes beyond what we are compelled to do under the directive. There has been a tendency, as a result of going back against the gold-plating problems, to implement by importing, where they can, the wording of the directive with almost nothing else. That in itself gives rise to its own problems, where the directive lacks clarity. The argument I am making here is not so much one of a particular issue on a particular implementation of the directive; but there are two basic points. National implementation is important. Very often, it is not merely a matter of just recycling the European measure; there are quite important decisions to be taken at national level on how you implement and the methods of implementation. The second point is one of democratic accountability. Because it is important, it ought to be done in a way that is democratically accountable. I would argue that the present system makes quite excessive use of the powers under section 2(2) of the European Communities Act, far beyond the use that was said to be made of that measure at the time that that Act was passed.

  468. I do not want to anticipate the next set of questions, but you do argue in your paper that directives enable national governments not to have to introduce primary legislation. Is this what you are saying; that they can get additional things on the statute book more easily by doing it this way than by having to introduce primary legislation?
  (Mr Howe) Yes. That is the nub of it. There are two points here, if I can distinguish them. One is getting the directive passed in the first place. The argument, in a way, may be more directed to the bureaucracy than the government/political level; that if there is a bureaucratically desired, but unpopular measure, for example metrication—which has been a consistent desire of the government machine for many, many years—getting that through parliament was problematical. However, by concurring in the passage of directives at European level, which require the country to metricate, and then using the section 2(2) mechanism to bring the measures through, the need for full parliamentary debate on it has been circumvented.

Mr Connarty

  469. A lot of the material we are covering is often repeated, Mr Howe, but now and then someone submits something that lights up the sky, and I must admit that in the last paragraphs of your paper you did that very successfully by raising the issue of the use of statutory instruments in section 2(2) of the 1972 Act. You say in your final paragraph: The problem of the woefully inadequate procedures for parliamentary scrutiny of statutory instruments of course extends beyond this particular period. I saw these being used more and more by the previous government, with a very large majority, and I am somewhat concerned that it continues to be used by this Government with an equally large majority. Very little seeps out of the committee room—and I sometimes wonder if it even seeps out of the brief of a minister into the ears of the people who are forced to sit on statutory instruments and nod them through. You may have touched on one of the biggest problems: the things that people hear about—and you began your submission saying they are very marginally coming from Europe—they do not know the process of metamorphosis that suddenly turns them into laws in this country because they are not put into bills and are slipped through statutory instruments. Do you not accept, though, that if you try to put these matters through in bills, it would just clog up the procedures of the legislation in the House of Commons and the House of Lords, to the point where you would get nothing else done but discuss European amendments to our laws?
  (Mr Howe) You could argue that that would be highly beneficial because it would bring to the attention of the public the very large number of measures which are now legislated at European level. In fairness to your question, being slightly cynical, the reason why the inadequacy of the procedure of the scrutiny of statutory instruments survives is because it is always convenient for the government of the day. The opposition of the day may object to it, or see its flaws and inadequacies, but when that opposition becomes government, it in turn finds that there is a certain amount of convenience in continuing the process. Leaving that factor aside, there is a strong argument for more effective scrutiny of statutory instruments, including a power effectively to consider and debate amendments. That is obviously a less intensive procedure than for bills, but a more intensive procedure than exists at present. If you had a better procedure for statutory instruments, there would be less need for the proposal I put in the last sentence, which is to do any amendment of an act of parliament by a bill, because if you improve the procedures for statutory instruments, there would be less objection to amending bills by that route than there is under the present system.

  Chairman: Mr Howe, that brings to an end this evidence session. Thank you very much. It has been very interesting from our point of view.

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